be commanded by the great seal, nor the little seal,to disturb or delay common right; and though such commandments do come, the justices shall not therefore leave (omit) to do right in any point." St. 2 Edward III., ch. 8. (1328.)

"That by commandment of the great seal, or privy seal, no point of this statute shall be put in delay; nor that the justices of whatsoever place it be shall let (omit) to do the common law, by commandment, which shall come to them under the great seal, or theprivy seal." 14 Edward III, st. 1, ch. 14. (1340.)

"It is ordained and established, that neither letters of the signet, nor of the king's privy seal, shall be from henceforth sent in damage or prejudice of the realm, nor in disturbance of the law" (the common law). 11 Richard II., ch. 10. (1387.)

It is perfectly apparent from these statutes, and from the oath administered to the justices, that it was a matter freely confessed by the king himself, that hisstatutes were of no validity, if contrary to the common law, or "common right."

The oath of the justices, before given, is, I presume, the same that has been administered to judges in England from the day when it was first prescribed to them, (1344,) until now. I do not find from the English statutes that the oath has ever been changed. The Essayon Grand Juries, before referred to, and supposed to have been written by Lord Somers, mentions this oath (page 73) as being still administered to judges, that is, in the time of Charles II., more than three hundred yearsafter the oath was first ordained.

If the oath has never been changed, it follows that judges have not only never been sworn to support any statutes whatever of the king, or of parliament, but that, for five hundred years past, they actually have beensworn to treat as invalid all statutes that were contrary to the common law.

SECTION VI. The Coronation Oath.

That the legislation of the king was of no authority over a jury, is further proved by the oath taken by the kings at their coronation. This oath seems to have beensubstantially the same, from the time of the Saxon kings, down to the seventeenth century, as will be seen from the authorities hereafter given.

The purport of the oath is, that the king swears to maintain the law of the land that is, the common law. In other words, he swears "to concede and preserve to the English people the laws and customs conceded to themby the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward;" * *and "the just laws and customs which the common people have chosen, (quas vulgus elegit)."

These are the same laws and customs which were called by the general name of "the law of the land," or "the common law," and, with some slight additions, were embodied in Magna Carta.

This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury;since, as has already been sufficiently shown, it was one part of this very common law itself, that is, of the ancient "laws, customs, and liberties," mentioned in theoath, that juries should judge of all questions that came before them, according to their own consciences, independently of the legislation of the king.

It was impossible that this right of the jury could subsist consistently with any right, on the part of the king, to impose any authoritative legislation upon them. Hisoath, therefore, to maintain the law of the land, or the ancient "laws, customs, and liberties," was equivalent to an oath that he would never assume to impose laws uponjuries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had noconstitutional power to do so, if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury, and that they wereunder no obligation whatever to enforce it, unless it coincided with their own ideas of justice.

The ancient coronation oath is printed with the Statutes of the Realm, vol. i., p. 168, and is as follows: [31]

TRANSLATION.

"Form of the Oath of the King of England, on his Coronation.

(The Archbishop of Canterbury, to whom, of right and custom of the Church of Canterbury, ancient and approved, it pertains to anoint and crown the kings of England, on the day of the coronation of the king, and before the king is crowned, shall propound theunderwritten questions to the king.)

The laws and customs, conceded to the English people by the ancient, just, and pious English kings, will you concede and preserve to the same people, with the confirmation of an oath? and especially the laws, customs,and liberties conceded to the clergy and people by the illustrious king Edward?

(And the king shall answer,) I do concede, and will preserve them, and confirm them by my oath.

Will yon preserve to the church of God, the clergy, and the people, entire peace and harmony in God, according to your powers?

(And the king shall answer,) I will.

In all your judgments, will you cause equal and right justice and discretion to be done, in mercy and truth, according to your powers?

(And the king shall answer,) I will.

Do you concede that the just laws and customs, which the common people have chosen, shall be preserved; and do you promise that they shall be protected by you, and strengthened to the honor of God, according to your powers?

(And the king shall answer,) I concede and promise."

The language used in the last of these questions, "Do you concede that the just laws and customs, which the common people have chosen, (quas vulgus elegit,) shall be preserved?" ect., is worthy of especialnotice, as showing that the laws, which were to be preserved, were not necessarily all the laws which the kings enacted, but only such of them as the common people had selected or approved.

And how had the common people made known their approbation or selection of these laws? Plainly, in no other way than this that the juries composed of the common people had voluntarily enforced them. The common people had no other legal form of making known their approbation of particular laws.

The word "concede," too, is an important word. In the English statutes it is usually translated grant as if with an intention to indicate that "the laws, customs, andliberties" of the English people were mere privileges, granted to them by the king; whereas it should be translated concede, to indicate simply an acknowledgment, on the part of the king, that such were the laws, customs, and liberties, which had been chosen and established by the people themselves, and of right belonged to them, and which he was bound to respect.

I will now give some authorities to show that the foregoing oath has, in substance, been the coronation oath from the times of William the Conqueror, (1066,) down to the time of James the First, and probably until 1688.

It will be noticed, in the quotation from Kelham, that he says this oath (or the oath of William the Conqueror) is "in sense and substance the very same with that which theSaxon kings used to take at their coronations."

Hale says:

"Yet the English were very zealous for them," (that is, for the laws of Edward the Confessor,) "no less or otherwise than they are at this time for the Great Charter; insomuch that they were never satisfied till the said laws were reenforced, and mingled, for the most part, with the coronation oath of king William I., and some of his successors." 1 Hale's History of Common Law, 157.

Also, "William, on his coronation, had sworn to govern by the laws of Edward the Confessor, some of which had been reduced into writing, but the greater part consistedof the immemorial customs of the realm." Ditto, p. 202, note L.

Kelham says:

"Thus stood the laws of England at the entry of William I., and it seems plain that the laws, commonly called the laws of Edward the Confessor, were at that time the standinglaws of the kingdom, and considered the great rule of theirrights and liberties; and that the Eriglish were so zealous for them, 'that they were never satisfied till the said lawswere reenforced, and mingled, for the most part, with the coronation oath.' Accordingly, we find that this greatconqueror, at his coronation on the Christmas day succeeding his victory, took an oath at the altar of St. Peter, Westminster, in sense and substance the very same with that which the Saxon kings used to take at their coronations. * * And at Barkhamstead, in the fourth year of his reign, in the presence of Lanfranc, Archbishop of Canterbury, for the quieting of the people, he swore that he would inviolably observe the good and approved ancient laws which had been made by the devout and pious kings of England, his ancestors, and chiefly by King Edward; and we are told that the people then departed in good humor." Kelham's Preliminary Discourse to the Laws of William the Conqueror. See, also, 1 Hale's History of the Common Law, 186.

Crabbe says that William the Conqueror "solemnly swore that he would observe the good and approved laws of Edward theConfessor." Crabbe's History of the English Law, p. 43.

The successors of William, up to the time of Magna Carta, probably all took the same oath, according to the custom of the kingdom; although there may be no historical accounts extant of the oath of each separate king. But history tells us specially that Henry I., Stephen, and Henry II., confirmed these ancient laws and customs. It appears, also, that the barons desired of John (what he afterwards granted by Magna Carta) "that the laws and liberties of King Edward, with other privileges granted to the kingdom and church of England, might be confirmed, as they were contained in the charters of Henry the First; further alleging, that at the time of his absolution, he promised by his oath toobserve these very laws and liberties." Echard's History of England, p. 105 6.

It would appear, from the following authorities, that since Magna Carta the form of the coronation oath has been "to maintain the law of the land," meaning that law asembodied in Magna Carta. Or perhaps it is more probable that the ancient form has been still observed, but that, as its substanceand purport were "to maintain the law of the land," this latter form of expression has been used, in the instances here cited, frommotives of brevity and convenience. This supposition is the more probable, from the fact that I find no statute prescribing achange in the form of the oath until 1688.

That Magna Carta was considered as embodying "the law of the land," or "common law," is shown by a statute passed by Edward I., wherein he "grants," or concedes,

"That the Charter of Liberties and the Charter of the Forest* * shall be kept in every point, without breach, * * and that ourjustices, sheriffs, mayors, and other ministers, which, under us, have the laws of our land [32] to guide, shall allow the saidcharters pleaded before them in judgment, in all their points, that is, to wit, the Great Charter as the Common Law, and the Charter of the Forest for the wealth of the realm.

"And we will, that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices, orby any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden fornaught." 25 Edward I., ch. 1 and 2. (1297.)

Blackstone also says:

"It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs ofthe realm, or the laws of Edward the Confessor; by which they usually mean the old common law which was established underour Saxon princes." Blackstone's Introduction to the Charters. See Blackstone's Law Tracts, 289.

Crabbe says:

"It is admitted, on all hands, that it (Magna Carta) contains nothing but what was confirmatory of the common law, and theancient usages of the realm, and is, properly speaking, only an enlargement of the charter of Henry I., and his successors." Crabbe's History of the English Law, p. 127.

That the coronation oath of the kings subsequent to Magna Carta was, in substance, if not in form, "to maintain this law of theland, or common law," is shown by a statute of Edward Third, commencing as follows:

"Edward, by the Grace of God, ect., ect., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that the law of the land, which weby oath are bound to maintain," ect. St. 20 Edward III. (1346.)

The following extract from Lord Somers' tract on Grand Juries shows that the coronation oath continued the same as late as 1616, (four hundred years after Magna Carta.) He says:

"King James, in his speech to the judges, in the Star Chamber, Anno 1616, told them, 'That he had, after many years, resolved to renew his oath, made at his coronation, concerning justice, and the promise therein contained for maintaining the law of the land.' And, in the next page save one, says, 'I was sworn tomaintain the law of the land, and therefore had been perjured if I had broken it. God is my judge, I never intended it.' "Somers on Grand Juries, p. 82.

In 1688, the coronation oath was changed by act of Parliament, and the king was made to swear:

"To govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of thesame." St. 1 William and Mary, ch. 6. (1688.)

The effect and legality of this oath will hereafter be considered. For the present it is sufficient to show, as has been already sufficiently done, that from the Saxon timesuntil at least as lately as 1616, the coronation oath has been, in substance, to maintain the law of the land, or the common law, meaning thereby the ancient Saxoncustoms, as embodied in the laws of Alfred, of Edward the Confessor, and finally in Magna Carta.

It may here be repeated that this oath plainly proves that the statutes of the king were of no authority over juries, ifinconsistent with their ideas of right; because it was one part of the common law that juries should try all causes according to their own consciences, any legislation of the king to the contrary notwithstanding.[33]

[1] Hale says:"The trial by jury of twelve men was the usualtrial among the Normans, in most suits; especially in assizes, etjuris utrum." 1 Hale's History of the Common Law, 219

This was in Normandy, before the conquest of England by theNormans. See Ditto, p. 218.

Crabbe says:"It cannot be denied that the practice of submittingcauses to the decision of twelve men was universal among all thenorthern tribes (of Europe) from the very remotest antiquity." Crabbe's History of the English Law, p. 32.

[2] "The people, who in every general council or assembly couldoppose and dethrone their sovereigns, were in little dread oftheir encroachments on their liberties; and kings, who foundsufficient employment in keeping possession of their crowns,would not likely attack the more important privileges of theirsubjects."

[3] This office was afterwards committed to sheriffs. But evenwhile the court was held by the lord, "the Lord was not judge,but the Pares (peers) only." Gilbert on the Court of Exchequer,61-2.

[4] The opinion expressed in the text, that the Witan had nolegislative authority, is corroborated by the followingauthorities:

"From the fact that the new laws passed by the king and the Witanwere laid before the shire-mote, (county court,) we should bealmost justified in the inference that a second sanction wasnecessary before they could have the effect of law in thatparticular county." Durham's Middle Ages, Sec. 2, B. 2, Ch. l.57 Lardner's Cab. Cyc., 53.

The "second sanction" required to give the legislation of theking and Witan the effect of law, was undoubtedly, I think, as ageneral thing, the sanction of a jury. I know of no evidencewhatever that laws were ever submitted to popular vote in thecounty courts, as this author seems to suppose possible. Anothermode, sometimes resorted to for obtaining the sanction of thepeople to the laws of the Witan, was, it seems, to persuade thepeople themselves to swear to observe them. Mackintoshsays:

"The preambles of the laws (of the Witan) speak of the infinitenumber of liegemen who attended, as only applauding themeasures of the assembly. But this applause was neither so unimportant to the success of the measures, nor so precisely distinguished from a share in legislation, as those who read history with a modern eye might imagine. It appears that under Athelstan expedients were resorted to, to obtain a consent to the law from great bodies of the people in their districts, which their numbersrendered impossible in a national assembly. That monarch appearsto have sent commissioners to hold shire-gemotes or countymeetings, where they proclaimed the laws made by the king andhis counsellors, which, being acknowledged and sworn to at thesefolk-motes (meetings of the people) became, by their assent,completely binding on the whole nation." Mackintosh's Hist. ofEngland, Ch. 2. 45 Lardner's Cab. Cc., 75.

[5] Page 31.

[6] Hallam says, "It was, however, to the county court that anEnglish freeman chiefly looked for the maintenance of his civilrights." 2 Middle Ages, 392.

Also, "This (the county court) was the great constitutionaljudicature in all ques- tions of civil right." Ditto, 395.Also, "The liberties of these Anglo-Saxon thanes were chieflysecured, next to their swords and their free spirits, by theinestimable right of deciding civil and criminal suits in theirown county courts." Ditto, 899.

[7] "Alfred may, in one sense, be called the founder of theselaws, (the Saxon,) for until his time they were an unwrittencode,but he expressly says, 'that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down' -- which is a decisive fact in the history of our laws wellworth noting." Introduction to Gilbert's History of the CommonPleas, p. 2, note.

Kelham says, "Let us consult our own lawyers and historians, andthey will tell as that Alfred, Edgar, and Edward the Confessor,were the great compilers and restorers of the English Laws." Kelham's Preliminary Discourse to the Laws of William theConqueror, p. 12. Appendix to Kelham's Dictionary of the NormanLanguage.

"He (Alfred) also, like another Theodosius, collected the variouscustoms that he found dispersed in the kingdom, and reduced anddigested them into one uniform system, or code of laws, in hissom-bec, or liber judicialis (judicial book). This he compiledfor the use of the court baron, hundred and county court, thecourt-leet and sheriff's toarn, tribunals which he establishedfor the trial of all causes, civil and criminal, in the verydistricts wherein the complaints arose." 4 Blackstone, 411.

Alfred himself says, "Hence I, King Alfred, gathered thesetogether, and commanded many of those to be written down whichour forefathers observed those which I liked and those whichI did not like, by the advice of my Witan, I threw aside. For Idurst not venture to set down in writing over many of my own,since I knew not what among them would please those that shouldcome after us. But those which I met with either of the days ofme, my kinsman, or of Offa, King of Mercia, or of Aethelbert, whowas the first of the English who received baptism thse whichappeared to me the justest I have here collected, and abandonedthe others. Then I, Alfred, King of the West Saxons, showed theseto all my Witan, and they then said that they were all willing toobserve them." Laws of Alfred, translated by R. Price, prefixedto Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc.

"King Edward * * projected and begun what his grandson, KingEdward the Confessor, afterwards completed, viz., one uniformdigest or body of laws to be observed throughout the wholekingdom, being probably no more than a revival of King Alfred'scode, with some improvements suggested by necessity andexperience, particularly the incorporating some of the British,or, rather, Mercian customs, and also such of the Danish (customs) as were reasonable and approved, into the West SaxonLage, which was still the ground-work of the whole. And thisappears to be the best supported and most plausible conjecture,(for certainty is not to be expected,) of the rise and originalof that admirable system of maxims and unwritten customs whichis now known by the name of the common law, as extending itsauthority universally over all the realm, and which is doubtlessof Saxon parentage." 4 Blackstone, 412.

"By the Lex Terrae and Lex Regni is understood the laws ofEdward the Confessor, confirmed and enlarged as they were by Williamthe Conqueror; and this Constitution or Code of Laws is what even tothis day are called 'The Common Law of the Land.'" Introductionto Gilbert's History of the Common Pleas, p. 22, note.

[8] Not the conqueror of the English people, (as the friends ofliberty maintain,) but only of Harold the usurper. See Hale'sHistory of the Common, Law, ch. 5.

[9] For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing institutions, theAnglo-Saxon statutes are concise and technical, alluding to thelaw which was then living and in vigor, rather than defining it.The same clauses and chapters are often repeated word, for word,in the statutes of subsequent kings, showing that enactmentswhich bear the appearance of novelty are merely declaratory.Consequently the appearance of a law, seemingly for the firsttime, is by no means to be considered as a proof that the matterwhich it contains is new; nor can we trace the progress of theAnglo-Saxon institutions with any degree of certainty, byfollowing the dates of the statutes in which we find them firstnoticed. All arguments founded on the apparent chronology of thesubjects included in the laws, are liable to great fallacies.Furthermore, a considerable portion of the Anglo-Saxon law wasnever recorded in writing. There can be no doubt but that therules of inheritance were well established and, defined; yet wehave not a single law, and hardly a single document from whichthe course of the descent of land can be inferred. * * Positiveproof cannot be obtained of the commencement of any institution,because the first written law relating to it may possibly bemerely confirmatory or declaratory; neither can the non-existenceof any institution be inferred from the absence of directevidence. Written laws were modified and controlled by customsof which no trace can be discovered until after the lapse ofcenturies, although those usages must have been in constant vigorduring the long interval of silence." 1 Palgrave's Rise andProgress of the English Commonwealth, 58-9.

[10] Rapin says, "The customs now practised in England are, forthe most part, the same as the Anglo-Saxons brought with themfrom Germany." Rapin's Dissertation on the Government of theAnglo-Saxons, vol. 2, Oct Ed., p. 138. See Kelham's Discoursebefore named.

[11] Hallam says, "The county of Sussex contains sixty-five('hundreds'); that of Dorset forty-three; while Yorkshire hasonly twenty-six; and Lancashire but six." 2 Middle Ages, 391.

[12] Excepting also matters pertaining to the collection of therevenue, which were determined in the king's court of exchequer.But even in this court it was the law "that none be amerced butby his peers." Mirror of Justices, 49.

[13] "For the English laws, although not written, may, as itshould seem, and that without any absurdity, be termed laws,(since this itself is law that which pleases the prince has theforce of law,) I mean those laws which it is evident werepromuulgated by the advice of the nobles and the authority of theprince, concerning doubts to be settled in their assembly. For iffrom the mere want of writing only, they should not be consideredlaws, then, unquestionably, writing would seem to confer moreauthority upon laws themselves, than either the equity of thepersons constituting, or the reason of those framing them." Glanville's Preface, p. 38. (Glanville was chief justice of HenryII., 1180.) 2 Turner's History of the Anglo-Saxons, 280.

[15] If the laws of the king were received as authoritative bythe juries, what occasion was there for his appointing specialcommissioners for the trial of offences, without the interventionof a jury, as he frequently did, in manifest and acknowledgedviolation of Magna Carta, and "the law of the land?" Theseappointments were undoubtedly made for no other reason than thatthe juries were not sufficiently subservient, but judgedaccording to their own notions of right, instead of the will ofthe king whether the latter were expressed in his statutes, orby his judges.

[16] Of course, Mr. Reeve means to be understood that, in thehundred court, and court-leet, the jurors were the judges, as hedeclares them to have been in the county court; otherwise the"bailiff" or "steward" must have been judge.

[17] The jurors were sometimes called " assessors," because theyassessed, or determined the amount of fines and amercements tobe imposed.

[18] "The barons of the Hundred" were the freeholders. Hallamsays: "The word baro, originally meaning only a man, was of verylarge significance, and is not unfrequently applied to commonfreeholders, as in the phrase court-baron." 3 Middle Ages,14-15.

Blackstone says: "The court-baron * * is a court of common law,and it is the court of the barons, by which name the freeholderswere sometimes anciently called; for that it is held before thefreeholders who owe suit and service to the manor." 3Blackstone, 33.

[19] The ancient jury courts kept no records, because those whocomposed the courts could neither make nor read records. Theirdecisions were preserved by the memories of the jurors and otherpersons present.

[20] Stuart says:

"The courts, or civil arrangements, which weremodelled in Germany, preserved the independence of the people;aud having followed the Saxons into England, and continuing theirimportance, they supported the envied liberty we boast of.

"As a chieftain led out his retainers to the field, and governedthem during war; so in peace he summoned them together, andexerted a civil jurisdiction. He was at once their captain andtheir judge. They constituted his court; and having inquired withhim into the guilt of those of their order whom justice hadaccused, they assisted him to enforce his decrees.

"This court (the court-baron) was imported into England; but theinnovation which conquest introduced into the fashion of thetimes altered somewhat its appearance.

"The head or lord of the manor called forth his attendants to hishall. * * He inquired into the breaches of custom, and ofjustice, which were committed within the precincts of histerritory, and with his followers, who sat with him as judges, hedetermined in all matters of debt, and of trespass to a certainamount. He possessed a similar jurisdiction with the chieftain inGermany, and his tenants enjoyed an equal authority with theGerman retainers.

"But a mode of administration which intrusted so much power tothe great could not long be exercised without blame or injustice.The German, guided by the candor of his mind, and entering intoall his engagements with the greatest ardor, perceived not, atfirst, that the chieftain to whom he submitted his disputes mightbe swayed, in the judgments he pronounced, by partiality,prejudice, or interest; and that the influence he maintained withhis followers was too strong to be restrained by justice.Experience instructed him of his error", he acknowledged thenecessity of appealing from his lord; and the court of theHundred was erected.

"This establishment was formed both in Germany and England, bythe inhabitants of a certain division, who extened theirjurisdiction over the territory they occupied. [21] They boundthemselves under a penalty to assemble at stated times; andhaving elected the wisest to preside over them, they judged, notonly all civil and criminal matters, but of those also whichregarded religion and the priesthood. The judicial power thusinvested in the people was extensive; they were able to preservetheir rights, and attended this court in arms.

[21] "It was the freemen in Germany, and the possessors of landin England, who were suitors (jurors) in the hundred court. Theseranks of men were the same. The alteration which had happened inrelation to property had invested the German freemen with land orterritory."

"As the communication, however, and intercourse, of theindividuals of a German community began to be wider, and moregeneral, as their dealings enlarged, and as disputes arose amongthe members of different hundreds, the insufficiency of thesecourts for the preservation of order was gradually perceived. Theshyre mote, therefore, or county court, was instituted; and itformed the chief source of justice both in Germany and England.

"The powers, accordingly, which had been enjoyed by the court ofthe hundred, were considerably impaired. It decided no longerconcerning capital offences; it decided not concerning matters ofliberty, and the property of estates, or of slaves; itsjudgments, in every case, became subject to review; and it lostentirely the decision of causes, when it delayed too long toconsider them.

"Every subject of claim or contention was brought, in the firstinstance, or by appeal, to the county court; and the earl, oreorldorman, who presided there, was active to put the laws inexecution. He repressed the disorders which fell out within thecircuit of his authority; and the least remission in hi duty, orthe least fraud he committed, was complained of and punished. Hewas elected from among the great, and was above the temptationofa bribe; but, to encourage his activity, he was presented with ashare of the territory he governed, or was entitled to aproportion of the fines and profits of justice. Every man, in hisdistrict, was bound to inform him concerning criminals, and toassist him to bring them to trial; and, as in rude and violenttimes the poor and helpless were ready to be oppressed by thestrong, he was instructed particularly to defend them.

"His court was ambulatory, and assembled only twice a year,unless the distribution of justice required that its meetingsshould be oftener. Every freeholder in the county was obliged toattend it; and should he refuse this service, his possessionswere seized, and he was forced to find surety for his appearance.The neighboring earls held not their courts on the same day; and,what seems very singular, no judge was allowed, after meals, toexercise his office.

"The druids also, or priests, in Germany, as we had formerlyoccasion to remark, and the clergy in England, exercised ajurisdiction in the hundred and county courts. They instructedthe people in religious duties, and in matters regarding thepriesthood; and the princes, earls, or eorldormen, related tothem the laws and customs of the community. These judges weremutually a check to each other; but it was expected that theyshould agree in their judgments, and should willingly unite theirefforts for the public interest. [22]

"The meeting (the county court) was opened with a discourse bythe bishop, explaining, out of the Scriptures and ecclesiasticalcanons, their several duties as good Christians and members ofthe church. After this, the alderman, or one of his assessors,made a discourse on the laws of the land, and the duties of goodsubjects and good citizens. When these preliminaries were over,they proceede to try and determine, first the causes of thechurch, next the pleas of the crown, and last of all thecontroversies of private parties." 8 Henry's History of GreatBritain, 348.

This view is corroborated by Tyrrell's Introduction to theHistory of England; p. 83-84, and by Spence's Origin of the Lawsand Political Institutions of Modern Europe, p. 447, and the noteon the same page. Also by a law of Canute to this effect, Inevery county let there be twice a year an assembly, whereat thebishop and the earl shall be present, the one to instruct thepeople in divine, the other in human, laws. Wilkins, p. 136.

"But the prince or earl performed not, at all times, in person,the obligations of his office. The enjoyment of ease and ofpleasure, to which in Germany he had delivered himself over,when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, made him often delegate to an inferior person the distribution of justice in his district. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the highemployments they sustained, called them often from themanagement of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties.Sheriffs, therefore, or deputies, were frequently appointed totransact their business; and though these were at first undersome subordination to the earls, they grew at length to beentirely independent of them. The connection of jurisdiction andterritory ceasing to prevail, and the civil being separated fromthe ecclesiastical power, they became the sole and properofficers for the direction of justice in the counties.

"The hundred, however, and county courts were not equal ofthemselves for the purposes of jurisdiction and order. It wasnecessary that a court should be erected, of supreme authority,where the disputes of the great should be decided, where thedisagreeing sentiments of judges should be reconciled, and whereprotection should be given to the people against their fraud andinjustice.

"The princes accordingly, or chief nobility, in the Germancommunities, assembled together to judge of such matters. TheSaxon nobles continued this prerogative; and the king, or, in hisabsence, the chief justiciary, watched over their deliberations.But it was not on every trivial occasion that this courtinterested itself. In smaller concerns, justice was refusedduring three sessions of the hundred, and claimed without effect,at four courts of the county, before there could lie an appeal toit.

"So gradually were these arrangements established, and sonaturally did the varying circumstances in the situation of theGermans and Anglo-Saxons direct those successive improvementswhich the preservation of order, and the advantage of society,called them to adopt. The admission of the people into the courtsof justice preserved, among the former, that equality of ranksfor which they were remarkable; and it helped to overturn, amongthe latter, those envious distinctions which the feudal systemtended to introduce, and prevented that venality in judges, andthose arbitrary proceedings, which the growing attachment tointerest, and the influence of the crown, might otherwise haveoccasioned." Stuart on the Constitution of England, p. 222 to245.

"In the Anglo-Saxon period, accordingly, twelve only wereelected; and these, together with the judge, or presiding officerof the district, being sworn to regard justice, and the voice ofreason, or conscience, all causes were submitted to them." Ditto, p. 260.

"Before the orders of men were very nicely disinguished, thejurors were elected from the same rank. When, however, a regularsubordination of orders was established, and when a knowledge ofproperty had inspired the necessitous with envy, and the richwith contempt, every man was tried by his equals. The same spiritof liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall to his sovereign) 'render up my castles, nor depart the kingdom, but by judgment of my peers.' Of this institution, so wisely calculated for the preservation of liberty, all our, historians have pronounced the eulogium." --Ditto, p. 262-3.

Blackstone says:

"The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and towns in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being thensubdivided into smaller channels, till the whole and every partof the kingdom were plentifully watered and refreshed. Aninstitution that seems highly agreeable to the dictates ofnatural reason, as well as of more enlightened policy.

"These inferior courts, at least the name and form of them, stillcntinue in our legal constitution; but as the superior courts ofrecord have, in practice, obtained a concurrent originaljurisdiction, and as there is, besides, a power of removingplaints or actions thither from all the inferior jurisdictions;upon these accounts (among others) it has happened that thesepetty tribunals have fallen into decay, and almost into oblivion;whether for the better or the worse may be matter of somespeculation, when we consider, on the one hand, the increase ofexpense and delay, and, on the other, the more able and impartialdecisions that follow from this change of jurisdiction.

"The order I shall observe in discoursing on these severalcourts, constituted for the redress of civil injuries, (for withthose of a jurisdiction merely criminal I shall not at presentconcern myself, [23]) will be by beginning with the lowest, andthose whose jurisdiction, though public and generally dispersedthrough the kingdom, is yet (with regard to each particularcourt) confined to very narrow limits; and so ascending graduallyto those of the most extensive and transcendent power." -- 3Blackstone, 30 to 32.

"The court-baron is a court incident to every manor in thekingdom, to beholden by the steward within the said manor. Thiscourt-baron is of two natures; the one is a customary court, ofwhich we formerly spoke, appertaining entirely to thecopy-holders, in which their estates are transferred by surrenderand admittance, and other matters transacted relative to theirtenures only. The other, of which we now speak, is a court ofcommon law, and it is a court of the barons, by which name thefreeholders were sometimes anciently called; for that it is heldby the freeholders who owe suit and service to th manor, thesteward being rather the registrar than the judge. These courts,though in their nature distinct, are frequently confoundedtogether. The court we are now considering, viz., the freeholderscourt, was composed of the lord's tenants, who were the pares (equals) of each other, and were bound by their feudal tenure toassist their lord in the dispensation of domestic justice. Thiswas formerly held every three weeks; and its most importantbusiness is to determine, by writ of right, all controversiesrelating to the right of lands within the manor. It may also holdplea of any personal actions, of debt, trespass in the case, orthe like, where the debt or damages do not amount to fortyshillings; which is the same sum, or three marks, that boundedthe jurisdiction of the ancient Gothic courts in their lowestinstance, or fierding courts, so called because four wereinstitute within every superior district or hundred." 8Blackstone, 38, 34.

"A hundred court is only a larger court-baron, being held for allthe inhabitants of a particular hundred, instead of a manor. Thefree suitors are here also the judges, and the steward theregistrar, as in the case of a court-baron. It is likewise nocourt of record, resembling the former at all points, except thatin point of territory it is of greater jurisdiction. This is saidby Sir Edward Coke to have been derived out of the county courtfor the ease of the people, that they might have justice done tothem at their own doors, without any charge or loss of time; butits institution was probably coeval with that of hundredsthemselves, which were formerly observed to have beenintroduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of differentvillages, oriinally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Caesar speakspositively of the judicial power exercised in their hundredcourts and courts-baron. 'Princeps regiorum atque pagorum' (whichwe may fairly construe the lords of hundreds and manors) 'intersuos jus dicunt, controversias que minuunt.' (The chiefs of thecountry and the villages declare the law among them, and abatecontroversies.) And Tacitus, who had examined their constitutionstill more attentively, informs us not only of the authority ofthe lords, but that of the centeni, the hundreders, or jury, whowere taken out of the common freeholders, and had themselves ashare in the determination. ' Eliguntur in conciliis etprincipes, qui jura per pagos vicosque reddunt, centeniisingulis, ex plebe comites comcilium simul et auctoritas adsunt.(The princes are chosen in the assemblies, who administer thelaws throughout the towns and villages, and with each one areassociated an hundred companions, taken from the people, forpurposes both of counsel and authority.) This hundred court wasdenominated haereda in the Gothic constitution. But this court,as causes are equally liable to removal from hence as from thecommon court-baron, and by the same writs, and may also bereviewed by writ of false judgment, is therefore fallen intoequal disuse with regard to the trial of actions." 8 Blackstone, 34,85.

"The county court is a court incident to the jurisdiction of thesheriff. It is not a court of record, but may hold pleas of debt,or damages, under the value of forty shillings; over some ofwhich causes these inferior courts have, by the express words ofthe statute of Gloucester, (6 Edward I., eh. 8,) a jurisdictontotally exclusive of the king's superior courts. * * The countycourt may also hold plea of many real actions, and of allpersonal actions to any amount, by virtue of a special writ,called a justicies, which is a writ empowering the sheriff, forthe sake of despatch, to do the samee justice in his county courtas might otherwise be had at Westminster. The freeholders of thecounty court are the real judges in this court, and the sheriffis the ministerial ofhcer. * * In modern times, as proceedingsare removable from hence into the king's superior courts, by writof pone or recordari, in the same manner as from hundred courtsand courts-baron, and as the same writ of false judgment may behad in nature of a writ of error, this has occasioned the samedisuse of bringing actions therein." 3 Blackstone, 36, 37.

"Upon the whole, we cannot but admire the wise economy andadmirable provision of our ancestors in settling the distributionof justice in a method so well calculated for cheapness,expedition, and ease. By the constitution which they established,all trivial debts, and injuries of small consequence, were to berecovered or redressed in every man's own county, hundred, orperhaps parish." 3 Blackstone, 59.

[22] It would be wholly erroneous, I think, to infer from thisstatement of Stuart, that either the "priests, princes, earls, oreorldormen" exercised any authority over the jury in the trial ofcauses, in the way of dictating the law to them. Henry's accountof this matter doubtless gives a much more accuraterepresentation of the truth. He says that anciently

[23] There was no distinction between the civil and criminalcourts, as to the rights or powers of juries.

[24] This quaint and curious book; (Smith's Commonwealth of England) describes the minutiae of trials, giving in detail the mode of impaneling the jury and then the conduct of the lawyers, witnesses, and court I give the following extracts, tending to show that the judges impose no law upon the juries, in either civil or criminal cases but only require them to determine the causes according to their consciences.

In civil causes he says:

"When it is thought that it is enough pleaded before them, and the witnesses have said what they can, one of the judges, with a brief and pithy recapitulation, reciteth to the twelvein sum the arguments of the sergeants of either side, that which the witnesses have declared, and the chief points of theevidence showed in writing, and once again putteth them in mind of the issue, and sometime giveth it them in writing,delivering to them the evidence which is showed on either part, if any be, (evidence here is called writings of contracts,authentical after the manner of England, that is to say, written, sealed, and delivered,) and biddeth them go together." p. 74.

This is the whole account given of the charge to the jury.

In criminal eases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds:

"When the judge hath heard them say enough, he asketh if they can say any more. If they say no, then he turneth his speech to the inquest. 'Good men, (saith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said.' " p. 92.

This is the whole account given of the charge in a criminal ease.

The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right andduty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact.

"If having pregnant evidence, nevertheless, the twelve do acquit the malefactor which they will do sometime, especially if they perceive either one of the justices or of the judges, or some other man, to pursue too much and too maliciously the death of theprisoner, * * the prisoner escapeth; but the twelve (are) not only rebuked by the judges, but also threatened of punishment; andmany times commanded to appear in the Star-Chamber, or before the Privy Council for the matter. But this threatening chanceth oftener than the execution thereof; and the twelve answer with most gentle words, they did it according to their consciences, andpray the judges to be good unto them, they did as they thought right, and as they accorded all, and so it passeth away for themost part." p. 100.

The account given of the trial of a peer of the realm corroborates the same point:

"If any duke, marquis, or any other of the degrees of a baron, or above, lord of the Parliament, be appeached of treason, or anyother capital crime, he is judged by his peers and equals; that, is, the yeomanry doth not go upon him, but an inquest of the Lordsof Parliament, and they give their voice not one for all, but each severally as they do in Parliament being (beginning) at theyoungest lord. And for judge one lord sitteth, who is constable of England for that day. The judgment once given, he breaketh his staff, and abdicateth his office. In the rest there is no difference from that above written," (that is, in the case of a freeman.) p. 98.

[25] "The present form of the jurors' oath is that they shall 'give a true verdict according to the evidence.' At what time this form wasintroduced is uncertain; but for several centuries after the Conquest, the jurors, both in civil and criminal cases, were sworn merely tospeak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accuratelytermed veredictum, or verdict, that is, ' a thing truly said'; whereas the phrase 'true verdict' in the modern oath is not an accurate expression." Political Dictionary, word Jury.

[26] Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases "according to law."

[27] Coke, as late as 1588, admits that amercements must be fixed by the peers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines andamercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta,in which fines, ransoms, and amercements are spoken of as if theywere the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be madeout between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its mostcomprehensive sense.

[29] The oath of the justices is in these words:"Ye shall swear, that well and lawfully ye shall serve our lord the king and his people, in the office of justice, and thatlawfully ye shall counsel the king in his business, and that ye shall not counsel nor assent to anything which may turn him in damage or disherison in any manner, way, orcolor. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; and that ye shall do equal law and execution of right to all his subjects, richand poor, without having regard to any person. And that ye take not by yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any otherthing that may turn to your profit, unless it be meat or drink, and that of small value, of any man that shall have any plea or process hanging before you, as long as the same process shall be so hanging, nor after forthe same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the kingis party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against theform of the statute thereof made, to disturb execution of the common law," [mark the term, "common law,") "or to menace the people that they may not pursue the law, that ye shalt cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by yourself,nor by other, privily nor apertly, maintain any plea or quarrel hanging in the king's court, or elsewhere in the country. And that ye deny no man common right by the king's letters, nor none other man's, nor for noneother cause, and in case any letters come to you contrary to the law,'" (that is, the "common law " before mentioned,) "that ye do nothing by such letters, but certify the king thereof, and proceed to execute the law," (the "common law" before mentioned,)"notwithstanding the same letters. And that ye shall do and procure the profit of the king and of his crown, with all things where ye may reasonably do the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at theking's will of body, lands, and goods, thereof to be done as shall please him, as God you help and all saints." 18 Edward III., st. 4. (1344.)

[30] That the terms "Law" and "Right," as usedin this statute, mean the common law, is shown by the preamble, which declares the motive of the statute to be that "the Law of the Land, (the common law,) which we (the king) by our oath are bound to maintain," may be the better kept, &.

[32] It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called "laws of theland."

[33] As the ancient coronation oath, given in the text, has come down from the Saxontimes, the following remarks of Palgrave will be pertinent, in connection with the oath, as illustrating the fact that, in those times,no special authority attached to the laws of the king:

"The Imperial Witenagemot was not a legislative assembly, in the strict sense of the term, for the whole Anglo-Saxon empire. Promulgating his edicts amidst his peers and prelates, the king uses the language ofcommand; but the theoretical prerogative was modified by usage, and the practice of the constitution required that the law should be accepted by the legislatures (courts) of the several kingdoms. * * The 'Basileus'speaks in the tone of prerogative: Edgar does notmerely recommend, he commands that the law shall be adopted by all the people, whether English, Danes, or Britons, in every part of his empire. Let this statute be observed, he continues, by Earl Oslac, and all the hostwho dwell under his government, and let it be transmitted by writ to the ealdormen of the other subordinate states. And yet, in defiance of this positive iujunction, thelaws of Edgar were not accepted in Mercia until the reign of Canute the Dane. It might be said that the course so adopted may have been an exception to the general rule; but in the scanty and imperfect annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar proceedings, that this mode of enactment must be considered as dictated by the constitution ofthe empire. Edward was the supreme lord of the Northumbrians, but more than a century elapsed before they obeyed his decrees. The laws of the glorious Athelstane had no effect in Kent, (county,) the dependent appanage of his crown, until sanctioned by the Witan of the shire (county court). And the power ofCanute himself, the 'King of all England,' does not seem to have compelled the Northumbrians to receive his code, until the reign of the Confessor, when such acceptance became a part of the compact upon the accession of a new earl.

Legislation constituted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the assembly was shown in avoiding unnecessary change. Consisting principally of traditionary usages and ancestorial customs,the law was upheld by opinion. The people considered their jurisprudence as a part of their inheritance. Their privileges and their duties were closely conjoined; most frequently, the statutes themselves were onlyaffirmances of ancient customs, or declaratory enactments.

In the Anglo-Saxon commonwealth, therefore, the legislative functions of the Witenagemot were of far less importance than the other branches of its authority. * * The members of the Witenagemot were the ' Pares Curiae '(Peers of Court) of the kingdom. How far, on these occasions, their opinion or their equity controlled the power of the crown,cannot be ascertained. But the form of inserting their names in the 'Testing Clause' was retained under the Anglo-Norman reigns; and the sovereign, who submitted his Charter to the judgment of the Proceres, professed tobe guided by the opinion which they gave. As the 'Pares' of the empire, the Witenagemot decided' the disputes between the great vassals of the crown. * * The jurisdictionexercised in the Parliament of Edward I., when the barony of a Lord-Marcher became the subject of litigation, is entirely analogous to the proceedings thus adopted by the greatcouncil of Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates passed judgment upon all great offenders.* *

The sovereign could not compel the obedience of the different nations composing the Anglo-Saxon empire. Hence, it became more necessary for him to conciliate theiropinions, if he solicited any service from a vassal prince or a vassal state beyond the ordinary terms of the compact; still more so, when he needed the support of a free burgh orcity. And we may view the assembly (the Witenagemot) as partaking of the character of a political congress, in which the liegemen of the crown, or the communities protected by the ' Basileus,' (sovereign,) were asked orpersuaded to relieve the exigences of the state, or to consider those measures which might be required for the common weal. The sovereign was compelled to parley with his dependents,

It may be doubted whether any one member of the empire had power to legislate for any other member. The Regulus of Cumbria was unaffected by the vote of the Earl of East Angliae, if he chose to stand out against it. These dignitaries constituted a congress, in which the sovereign could treat more conveniently and effectually with his vassalsthan by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a vassal denying his assentto the grant, might assert that the engagement which he had contracted with his superior did not involve any pecuniary subsidy, but only rendered him liable to perform service in the field." 1 Palgrave's Rise and Progress of the English Commonwealth, 637 to 642.

CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES INCIVIL SUITS.

The evidence already given in the preceding chapters proves thatthe rights and duties of jurors, in civil suits, were ancientlythe same as in criminal ones; that the laws of the king were ofno obligation upon the consciences of the jurors, any furtherthan the laws were seen by them to be just; that very few lawswere enacted applicable to civil suits; that when a new law wasenacted, the nature of it could have been known to the jurorsonly by report, and was very likely not to be known to them atall; that nearly all the law involved in civil suits wasunwritten; that there was usually no one in attendance uponjuries who could possibly enlighten them, unless it weresheriffs, stewards, and bailiffs, who were unquestionably tooignorant and untrustworthy to instruct them authoritatively; thatthe jurors must therefore necessarily have judged for themselvesof the whole case; and that, as a general rule, they could judgeof it by no law but the law of nature, or the. principles ofjustice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that "they wouldmake known the truth according to their consciences," impliesthat the jurors were above the authority of all legislation. Themodern oath, in England, viz., that they "will well and truly trythe issue between the parties, and a true verdict give, accordingto the evidence," implies the same thing. If the laws of the kinghad been binding upon a jury, they would have been sworn to trythe cases according to law, or according to the laws.

The ancient writs, in civil suits, as given in Glanville, (withinthe half century before Magna Carta,) to wit, "Summon twelve freeand legal men, (or sometimes twelve knights,) to be in court,prepared upon their oaths to declare whether A or B have thegreater right to the land in question," indicate that the jurorsjudged of the whole matter on their consciences only.

The language of Magna Carta, already discussed, establishesthe same point; for, although some of the words, such as"outlawed," and "exiled," would apply only to criminal cases,nearly the whole chapter applies as well to civil as to criminalsuits. For example, how could the payment of a debt ever beenforced against an unwilling debtor, if he could neither be"arrested, imprisoned, nor deprived of his freehold," and if theking could neither "proceed against him, nor send any one againsthim, by force or arms" ? Yet Magna Carta as much forbids thatany of these things shall be done against a debtor, as against acriminal, except according to, or in execution of, " a judgmentof his peers, or the law of the land," a provision which, ithas been shown, gave the jury the free and absolute right to giveor withhold "judgment" according to their consciences,irrespective of all legislation.

The following provisions, in the Magna Carta of John, illustratethe custom of referring the most important matters of a civilnature, even where the king was a party, to the determination ofthe peers, or of twelve men, acting by no rules but their ownconsciences. These examples at least show that there is nothingimprobable or unnatural in the idea that juries should try allcivil suits according to their own judgments, independently ofall laws of the king.

Chap. 65. "If we have disseized or dispossessed the Welsh of anylands, liberties, or other things, without the legal judgment oftheir peers, they shall be immediately restored to them. And ifany dispute arises upon this head, the matter shall be determinedin the Marches, [1] by the judgment of their peers," &c;.

Chap. 68. " We shall treat with Alexander, king of Scots,concerning the restoring of his sisters, and hostages, and rightsand liberties, in the same form and manner as we shall do to therest of our barons of England; unless by the engagements, whichhis father William, late king of Scots, hath entered into withus, it ought to be otherwise; and this shall be left to thedetermination of his peers in our court."

Chap. 56. "All evil customs concerning forests, warrens, andforesters, warreners, sheriffs, and their officers, rivers andtheir keepers, shall forthwith be inquired into in each county,by twelve knights of the same shire, chosen by the mostcreditable persons in the same county, and upon oath; and withinforty days after the said inquest, be utterly abolished, so asnever to be restored."

There is substantially the same reason why a jury ought to judgeof the justice of laws, and hold all unjust laws invalid, incivil suits, as in criminal ones. That reason is the necessity ofguarding against the tyranny of the government. Nearly the sameoppressions can be practised in civil suits as in criminal ones.For example, individuals may be deprived, of their liberty, androbbed of their property, by judgments rendered in civil suits,as well as in criminal ones. If the laws of the king wereimperative upon a jury in civil suits, the king might enact lawsgiving one man's property to another, or confiscating it to theking himself, and authorizing civil suits to obtain possession ofit. Thus a man might be robbed of his property at the arbitrarypleasure of the king. In fact, all the property of the kingdomwould be placed, at the arbitrary disposal of the king, throughthe judgments of juries in civil suits, if the laws of the kingwere imperative upon a jury in such suits. [2]

Furthemore, it would be absurd and inconsistent to makea jury paramount to legislation in criminal suits, andsubordinate to it in civil suits; because an individual, byresisting the execution of a civil judgment, founded upon anunjust law, could give rise to a criminal suit, in which the jurywould be bound to hold the same law invalid. So that, if anunjust law were binding upon a jury in civil suits, a defendant,by resisting the execution of the judgment, could, in effect,convert the civil action into a criminal one, in which the jurywould be paramount to the same legislation, to which, in thecivil suit, they were subordinate. In other words, in thecriminal suit, the jury would be obliged to justify the defendantin resisting a law, which, in the civil suit, they had said hewas bound to submit to.

To make this point plain to the most common mind suppose alaw be enacted that the property of A shall be given to B. B brings a civil action to obtain possession of it. If the jury, in thiscivil suit, are bound to hold the law obligatory, they render ajudgment in favor of B, that he be put in possession of theproperty; thereby declaring that A is bound to submit to a lawdepriving him of his property. But when the execution of thatjudgment comes to be attempted that is, when the sheriff comesto take the property for the purpose of delivering it to B Aacting, as he has a natural right to do, in defence of hisproperty, resists and kills the sheriff. He is thereupon indictedfor murder. On this trial his plea is, that in killing thesheriff, he was simply exercising his natural right of defendinghis property against an unjust law. The jury, not being bound, ina criminal case, by the authority of an unjust law, judge the acton its merits, and acquit the defendant thus declaring that hewas not bound to submit to the same law which the jury, in thecivil suit, had, by their judgment, declared that he was bound tosubmit to. Here is a contradiction between the two judgments. Inthe civil suit, the law is declared to be obligatory upon A; inthe criminal suit, the same law is declared to be of noobligation.

It would be a solecism and absurdity in government to allowsuch consequences as these. Besides, it would be practicallyimpossible to maintain government on such principles; for nogovernment could enforce its civil judgments, unless it couldsupport them by criminal ones, in case of resistance. A jury musttherefore be paramount to legislation in both civil and criminalcases, or in neither. If they are paramount in neither, they areno protection to liberty. If they are paramount in both, then alllegislation goes only for what it may chance to be worth in theestimation of a jury.

Another reason why Magna Carta makes the discretion andconsciences of juries paramount to all legislation in civilsuits, is,that if legislation were binding upon a jury, the jurors (by reason of their being unable to read, as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them) would have been necessitated at least in those courts in which the king's justices sat to take the word of those justices as to what the laws of the king really were. In other words, they would have been necessitated to take the law from the court, as jurors do now.

Now there were two reasons why, as we may rationally suppose,the people did not wish juries to take their law from the king'sjudges. One was, that, at that day, the people probably had senseenough to see, (what we, at this day, have not sense enough tosee, although we have the evidence of it every day before oureyes,) that those judges, being dependent upon the legislativepower, (the king,) being appointed by it, paid by it, andremovable by it at pleasure, would be mere tools of that power,and would hold all its legislation obligatory, whether it werejust or unjust. This was one reason, doubtless, why Magna Cartamade juries, in civil suits, paramount to all instructions of theking's judges. The reason was precisely the same as that formaking them paramount to all instructions of judges in criminalsuits, viz., that the people did not choose to subject theirrights of property, and all other rights involved in civil suits,to the operation of such laws as the king might please to enact.It was seen that to allow the king's judges to dictate the law tothe jury would be equivalent to making the legislation of theking imperative upon the jury.

Another reason why the people did not wish juries, in civilsuits, to take their law from the king's judges, doubtless was,that, knowing the dependence of the judges upon the king, andknowing that the king would, of course, tolerate no judges whowere not subservient to his will, they necessarily inferred; thatthe king's judges would be as corrupt, in the administration ofjustice, as was the king himself, or as he wished them to be. Andhow corrupt that was, may be inferred from the followinghistorical facts.

Hume says:

"It appears that the ancient kings of England put themselvesentirely upon the footing of the barbarous Eastern princes, whomno man must approach without a present, who sell all their goodoffices, and who intrude themselves into every business that theymay have a pretence for extorting money. Even justice wasavowedly bought and sold; the king's court itself, though thesupreme judicature of the kingdom, was open to none that broughtnot presents to the king; the bribes given for expedition, delay,suspension, and doubtless for the perversion of justice, wereentered in the public registers of the royal revenue, and remainas monuments of the perpetual iniquity and tyranny of the times.The barons of the exchequer, for instance, the first nobility ofthe kingdom, were not ashamed to insert, as an article in theirrecords, that the county of Norfolk paid a sum that they might befairly dealt with; the borough of Yarmouth, that the king'scharters, which they have for their liberties, might not beviolated; Richard, son of Gilbert, for the king's helping him torecover his debt from the Jews; * * Serio, son of Terlavaston,that he might be permitted to make his defence, in case he wereaccused of a certain homicide; Walter de Burton, for free law, ifaccused of wounding another; Robert de Essart, for having aninquest to find whether Roger, the butcher, and Wace andHumphrey, accused him of robbery and theft out of envy andill-will, or not; William Buhurst, for having an inquest to findwhether he were accused of the death of one Godwin, out ofill-will, or for just cause. I have selected these few instancesfrom a great number of the like kind, which Madox had selectedfrom a still greater number, preserved in the ancient rolls ofthe exchequer.

Sometimes a party litigant offered the king a certain portion, a half, a third, a fourth, payable out of the debts which he, as the executor of justice, should assist in recovering. Theophania de Westland agreed to pay the half of two hundred and twelve marks, that she might recover that sum against James de Fughleston; Solomon, the Jew, engaged to pay one markout of every seven that he should recover against Hugh de laHose; Nicholas Morrel promised to pay sixty pounds, that the Earlof Flanders might be distrained to pay him three hundred andforty-three pounds, which the earl had taken from him; and thesesixty pounds were to be paid out of the first money that Nicholasshould recover from the earl." Hume, Appendix 2.

"In the reign of Henry II,, the best and most just of these (theNorman) princes, * *Peter, of Blois, a judicious and even elegantwriter, of that age, gives a pathetic description of the venalityof justice, and the oppressions of the poor, * * and he scruplesnot to complain to the king himself of these abuses. We may judgewhat the case would be under the government of worse princes." Hume, Appendix 2.

Carte says:

"The crown exercised in those days an exorbitant andinconvenient power, ordering the justices of the king's court, insuits about lands, to turn out, put, and keep in possession,which of the litigants they pleased; to send contradictoryorders; and take large sums of money from each; to respiteproceedings; to direct sentences; and the judges, acting by theircommission, conceived themselves bound to observe such orders,to the great delay, interruption, and preventing of justice; atleast, this was John's practice," Carte's History of England,vol. 1, p. 832.

Hallam says:

"But of all the abuses that deformed the Anglo-Saxon government,none was so flagitious as the sale of judicial redress, The king,we are often told, is the fountain of justice; but in those agesit was one which gold alone could unseal. Men fined (paid fines)to have right done them; to sue in a certain court; to implead acertain person; to have restitution of land which they hadrecovered at law. From the sale of that justice which everycitizen has a right to demand, it was an easy transition towithhold or deny it. Fines were received for the king's helpagainst the adverse suitor; that is, for perversion of justice,or for delay. Sometimes they were paid by opposite parties, and,of course, for opposite ends." 2 Middle Ages, 438.

In allusion to the provision of Magna Carta on this subject,Hallam says:

"A law which enacts that justice shall neither be sold, denied,nor delayed, stamps with infamy that government under which ithad become necessary." 2 Middle Ages, 451.

Lingard, speaking of the times of Henry II., (say 1184,) says:

"It was universally understood that money possessed greaterinfluence than justice in the royal courts, and instances are onrecord, in which one party has made the king a present toaccelerate, and the other by a more valuable offer has succeededin retarding a decision. * * But besides the fines paid to thesovereigns, the judges often exacted presents for themselves, andloud complaints existed against their venality and injustice." 8 Lingard, 231.

In the narrative of "The costs and charges which I, Richard deAnesty, bestowed in recovering the land of William, my uncle,"(some fifty years before Magna Carta,) are the following items:

"To Ralph, the king's physician, I gave thirty-six marks and onehalf; to the king an hundred marks; and to the queen one mark ofgold." The result is thus stated. "At last, thanks to our lordthe king, and by judgment of his court, my uncle's land wasadjudged to me." 2 Palgrave's Rise and Progress of the EnglishCommonwealth, p. 9 and 24.

Palgrave also says:

"The precious ore was cast into the scales of justice, even whenheld by the most conscientious of our Anglo-Saxon kings. A singlecase will exemplify the practices which prevailed. Alfric, theheir of 'Aylwin, the black,' seeks to set aside the death-bedbequest, by which his kinsman bestowed four rich and fertilemanors upon St. Benedict. Alfric, the claimant, was supported byextensive and powerful connexions; and Abbot Alfwine, thedefendant, was well aware that there would be danger in thediscussion of the dispute in public, or before the Folkmoot,(people's meeting, or county court); or, in other words, that theThanes of the shire would do their best to give a judgment infavor of their compeer. The plea being removed into the RoyalCourt, the abbot acted with that prudence which so often callsforth the praises of the monastic scribe. He gladly emptiedtwenty marks of gold into the sleeve of the Confessor, (Edward,)and five marks of gold presented to Edith, the Fair, encouragedher to aid the bishop, and to exercise her gentle influence inhis favor. Alfric, with equal wisdom, withdrew from prosecutingthe hopeless cause, in which his opponent might possess anadvocate in the royal judge, and a friend in the king's consort.Both parties. therefore, found it desirable to come to anagreement." 1 Palgrave's Rise and Progress, &c;., p. 650.

But Magna Carta has another provision for the trial of civilsuits, that obviously had its origin in the corruption of theking's judges. The provision is, that four knights, to be chosenin every county, by the people of the county, shall sit with theking's judges, in the Common Pleas, in jury trials, (assizes,) onthe trial of three certain kinds of suits, that were among themost important that were tried at all. The reason for thisprovision undoubtedly was, that the corruption and subserviencyof the king's judges were so well known, that the people wouldnot even trust them to sit alone in a jury trial of anyconsiderable importance. The provision is this:

Chap. 22, (of John's Charter.) "Common Pleas shall not follow ourcourt, but shall be holden in some certain place. Trials upon thewrit of novel disseisin, and of Mort d'Ancester, and of DarreinPresentment, shall be taken but in their proper counties, andafter this manner: We, or, if we should be out of our realm, ourchief justiciary, shall send two jnsticiaries through everycounty four times a year; [3] who, with four knights chosen outof every shire, by the people, shall hold the assizes (juries) inthe county, on the day and at the place appointed."

It would be very unreasonable to suppose that the king's judgeswere allowed to dictate the law to the juries, when the peoplewould not even suffer them to sit alone in jury trials, butthemselves chose four men to sit with them, to keep them honest.[4]

This practice of sending the king's judges into the countiesto preside at jury trials, was introduced by the Norman kingsUnder the Saxons it was not so. No officer of the king wasallowed to preside at a jury trial; but only magistrates chosenby the people.[5]

But the following chapter of John's charter, which immediatelysucceeds the one just quoted, and refers to the same suits,affords very strong, not to say conclusive, proof, that juriesjudged of the law in civil suits that is, made the law, so faras their deciding according to their own notions of justice couldmake the law.

Chap. 23. "And if, on the county day, the aforesaid assizescannot be taken, so many knights and freeholders shall remain, ofthose who shall have been present on said day, as that thejudgments may be rendered by them, whether the business be moreor less."

The meaning of this chapter is, that so many of the civilsuits, as could not be tried on the day when the king's justiceswere present, should be tried afterwards, by the four knightsbefore mentioned, and the freeholders, that is, the jury. It mustbe admitted, of course, that the juries, in these cases, judgedthe matters of law, as well as fact, unless it be presumed thatthe knights dictated the law to the jury na thing of which thereis no evidence at all.

As a final proof on this point, there is a statute enactedseventy years after Magna Carta, which, although it is contraryto the common law, and therefore void, is nevertheless goodevidence, inasmuch as it contains an acknowledgment, on the partof the king himself, that juries had a right to judge of thewhole matter, law and fact, in civil suits. The provision isthis:

"It is ordained, that the justices assigned to take the assizes,shall not compel the jurors to say precisely whether it bedisseisin, or not, so that they do show the truth of the deed,and seek aid of the justices. But if they will, of their ownaccord, say that it is disseisin, or not, their verdict shall beadmitted at their own peril." 13 Edward I., st. 1, ch. 3, sec.2. (1285.)

The question of "disseisin, or not," was a question of law, aswell as fact. This statute, therefore, admits that the law, aswell as the fact, was in the hands of the jury. The statute isnevertheless void, because the king had no authority to givejurors a dispensation from the obligation imposed upon them bytheir oaths and the "law of the land," that they should "makeknown the truth according their (own) consciences." This theywere bound to do, and there was no power in the king to absolvethem from the duty. And the attempt of the king thus to absolvethem, and authorize them to throw the case into the hands of thejudges for decision, was simply an illegal and unconstitutionalattempt to overturn the "law of the land," which he was sworn tomaintain, and gather power into his own hands, through hisjudges. He had just as much constitutional power to enact thatthe jurors should not be compelled to declare the facts, but thatthey might leave them to be determined by the king's judges, ashe had to enact that they should not be compelled to declare thelaw, but might leave it to be decided by the king's judges. 122It was as much the legal duty of the jury to decide the law as todecide the fact; and no law of the king could affect theirobligation to do either. And this statute is only one example ofthe numberless contrivances and usurpations which have beenresorted to, for the purpose of destroying the original andgenuine trial by jury.

[1] Marches, the limits, or boundaries, between England andWales.

[2] That the kings would have had no scruples to enact laws forthe special purpose of plundering the people, by means of thejudgments of juries, if they could have got juries to acknowledgethe authority of their laws, is evident from the audacity withwhich they plundered them, without any judgments of juries toauthorize them.

It is not necessary to occupy space here to give details as tothese robberies; but only some evidence of the general fact.

Hallam says, that "For the first three reigns (of the Normankings) * * the intolerable exactions of tribute, the rapine ofpurveyance, the iniquity of royal courts, are continually in themouths of the historians. ' God sees the wretched people,' saysthe Saxon Chronicler, 'most unjustly oppressed; first they aredespoiled of their possessions, and then butchered.' This was agrievous year (1124). Whoever had any property, lost it by heavytaxes and unjust decrees." 2 Middle Ages, 435-6.

"In the succeeding reign of John, all the rapacious exactionsusual to these Norman kings were not only redoubled, but mingledwith outrages of tyranny still more intolerable.

"In 1207 John took a seventh of the movables of lay and spiritualpersons, all murmuring, but none daring to speak against it." Ditto, 446.

In Hume's account of the extortions of those times, the followingparagraph occurs:

"But the most barefaced acts of tyranny and oppression werepractised against the Jews, who were entirely out of theprotection of the law, and were abandoned to the immeasurablerapacity of the king and his ministers. Besides many otherindignities, to which they were continually exposed, it appearsthat they were once all thrown into prison, and the sum of 66,000marks exacted for their liberty. At another time, Isaac, the Jew,paid alone 5100 marks", Brun, 3000 marks; Jurnet, 2000; Bennet,500. At another, Licorica, widow of David, the Jew of Oxford, wasrequired to pay 6000 marks." Hume's Hist Eng., Appendix 2.

Further accounts of the extortions and oppressions of the kingsmay be found in Hume's History, Appendix 2, and in Hallam'sMiddle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for someof the spoliations he had committed upon individuals "without thelegal judgment of their peers." See Magna Carta of John, ch.60, 61, 65 and 66.

One of the great charges, on account of which the nation roseagainst John, was, that he plundered individuals of theirproperty, "without legal judgment of their peers." Now it wasevidently very weak and short sighted in John to expose himselfto such charges, if his laws were really obligatory upon thepeers; because, in that case, he could have enacted any laws thatwere necessary for his purpose, and then, by civil suits, havebrought the cases before juries for their "judgment," and thushave accomplished all his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints,that he deprived men of their property "without legal judgment oftheir peers," if his laws had been binding upon the peers;because he could then have made the same spoliations as well withthe judgment of the peers as without it. Taking the judgment ofthe peers in the matter, would have been only a ridiculous anduseless formality, if they were to exercise no discretion orconscience of their own, independently of the laws of the king.

It may here be mentioned, in passing, that the same would be truein criminal mature, if the king's Laws were obligatory uponjuries.

As an illustration of what tyranny the kings would sometimespractise, Hume says:

"It appears from the Great Charter itself, that not only John, atyrannical prince, and Richard, a violent one, but their fatherHenry, under whose reign the prevalence of gross abuses is theleast to be suspected, were accustomed, from their soleauthority, without process of law, to imprison, banish, andattaint the freemen of their kingdom." Hume, Appendix 2.

The provision, also, in the 64th chapter of Magna Carta, that "all unjust and illegal fines, and all amercements, imposedunjustly, and contrary to the Law of the Land, shall be entirelyforgiven," &c;.; and the provision, in chapter 61, that the king"will cause full justice to be administered" in regard to "allthose things, of which any person has, without legal judgment ofhis peers, been dispossessed or deprived, either by King Henry,our father., or our brother, King Richard," indicate thetyrannical practices that prevailed.

We are told also that John himself "had dispossessed severalgreat men without any judgment of their peers, condemned othersto cruel deaths, * * insomuch that his tyrannical will stoodinstead of a law." Echard's History of England, 106.Now all these things were very unnecessary and foolish, if hislaws were binding upon juries; because, in that ease, he couldhave procured the conviction of these men in a legal manner, andthus have saved the necessity of such usurpation. In short, ifthe laws of the king had been binding upon juries, there is norobbery, vengeance, or oppression, which he could not haveaccomplished through the judgments of juries. This considerationis sufficient, of itself, to prove that the laws of the king wereof no authority over a jury, in either civil or criminal cases,unless the juries regarded the laws as just in themselves.

[3] By the Magna Carta of Henry III., this is changed to once ayear.

[4] From the provision of Magna Carta, cited in the text, it mustbe inferred that there can be no legal trial by jury, in civileases, if only the king's justices preside; that, to make thetrial legal, there must be other persons, chosen by the people,to sit with them; the object being to prevent the jury's beingdeceived by the justices. I think we must also infer that theking's justices could sit only in the three actions speciallymentioned. We cannot go beyond the letter of Magria Carta, inmaking innovations upon the common law, which required allpresiding officers in jury trials to be elected by the people.

[5] ["The earls, sheriffs, and head-boroughs were annuallyelected in the full folcmote, (people's meeting)." Introductionto Gilbert's History of the Common Pleas, p. 2, note.

"It was the especial province of the earldomen or earl to attendthe shyre-meeting, (the county court,) twice a year, and thereofficiate as the county judge in expounding the secular laws, asappears by the fifth of Edgar's laws." Same, p. 2, note.

"Every ward had its proper alderman, who was chosen, and notimposed by the prince." Same, p. 4, text.

"As the aldermen, or earls, were always chosen" (by the people)"from among the greatest thanes, who in those times weregenerally more addicted to arms than to letters, they were butill-qualified for the administration of justice, and performingthe civil duties of their office." 3 Henry's History of GreatBritain, 343.

"But none of these thanes were annually elected in the fullfolcmote, (people's meeting,) as the earls, sheriffs, andhead-boroughs were; nor did King Alfred (as this author suggests)deprive the people of the election of those last mentionedmagistrates and nobles, much less did he appoint them himself." Introd. to Gilbert's Hist. Com. Pleas, p. 2, note.

"The sheriff was usually not appointed by the lord, but electedby the freeholders of the district." Political Dictionary, wordSheriff.

"Among the most remarkable of the Saxon laws we may reckon* * the election of their magistrates by the people, originally eventhat of their kings, till dear-bought experience evinced theconvenience and necessity of establishing an hereditarysuccession to the crown. But that (the election) of allsubordinate magistrates, their military officers or heretochs,their sheriffs, their conservators of the peace, their coroners,their portreeves, (since changed into mayors and bailiffs,) andeven their tithing-men and borsholders at the last, continued,some, till the Norman conquest, others for two centuries after,and some remain to this day." 4 Blackstone, 418.

"The election of sheriffs was left to the people, according toancient usage." St. West. 1, c. 27. Crabbe's History ofEnglish Law, 181.

CHAPTER V. OBJECTIONS ANSWERED

The following objections will be made to the doctrines and theevidence presented in the preceding chapters.

1. That it is a maxim of the law, that the judges respond to thequestion of law, and juries only to the question of fact.The answer to this objection is, that, since Magna Carta, judgeshave had more than six centuries in which to invent andpromulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but theambitious and lawless will of the judges themselves, and of thosewhose instruments they are.[1]

2. It will be asked, Of what use are the justices, if the jurorsjudge both of law and fact?

The answer is, that they are of use, 1. To assist and enlightenthe jurors, if they can, by their advice and information; suchadvice and information to be received only for what they maychance to be worth in the estimation of the jurors. 2. To doanything that may be necessary in regard, to granting appeals andnew trials.

3. It is said that it would be absurd that twelve ignorant menshould have power to judge of the law, while justices learned inthe law should be compelledto sit by and see the law decidederroneously.

One answer to this objection is, that the powers of juries are notgranted to them on the supposition that they know the law betterthan the justices; but on the ground that the justices areuntrustworthy, that they are exposed to bribes, are themselvesfond of power and authority, and are also the dependent andsubservient creatures of the legislature; and that to allow themto dictate the law, would not only expose the rights of parties tobe sold for money, but would be equivalent to surrendering all theproperty, liberty, and rights of the people, unreservedly into thehands of arbitrary power, (the legislature,) to be disposed of atits pleasure. The powers of juries, therefore, not only place acurb upon the powers of legislators and judges, but imply also animputation upon their integrity and trustworthiness: and these arethe reasons why legislators and judges have formerly entertainedthe intensest hatred of juries, and, so fast as they could do itwithout alarming the people for their liberties, have, byindirection, denied, undermined, and practically destroyed theirpower. And it is only since all the real power of juries has beendestroyed, and they have become mere tools in the hands oflegislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all thetemptations of money, fame, and power, to induce them todisregard justice between parties, and sell the rights, and violate theliberties of the people. Jurors, on the other hand, are exposed tonone of these temptations. They are not liable to bribery, forthey are unknown to the parties until they come into the jury-box.They can rarely gain either fame, power, or money, by givingerroneous decisions. Their offices are temporary, and they knowthat when they shall have executed them, they must return to thepeople, to hold all their own rights in life subject to theliability of such judgments, by their successors, as theythemselves have given an example for. The laws of human naturedo not permit the supposition that twelve men, taken by lot from themass of the people, and acting under such circumstances, will allprove dishonest. It is a supposable case that they may not besufficiently enlightened to know and do their whole duty, in allcases whatsoever; but that they should all prove dishonest, is notwithin the range of probability. A jury, therefore, insures to us what no other court does that first and indispensable requisitein a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of the law,they decide the law absolutely; that their decision mustnecessarily stand, be it right or wrong; and that this power ofabsolute decision would be dangerous in their hands, by reason oftheir ignorance of the law.

One answer is, that this power, which juries have of judging ofthe law, is not a power of absolute decision in all cases. Forexample, it is a power to declare imperatively that a man'sproperty, liberty, or life, shall not be taken from him; but it isnot a power to declare imperatively that they shall be taken fromhim.

Magna Carta does not provide that the judgments of the peers shallbe executed; but only that no other than their judgments shallever be executed, so far as to take a party's goods, rights, orperson, thereon.

A judgment of the peers may be reviewed, and invalidated, and anew trial granted. So that practically a jury has no absolutepower to take a party's goods, rights, or person. They have onlyan absolute veto upon their being taken by the government. Thegovernment is not bound to do everything that a jury may adjudge.It is only prohibited from doing anything (that is, from takinga party's goods, rights, or person) unless a jury have firstadjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment ofone jury should be reaffirmed by another, on a new trial, it mustthen be executed. But Magna Carta does not command even this although it might, perhaps, have been reasonably safe for it tohave done so for if two juries unanimously affirm the samething, after all the light and aid that judges and lawyers canafford them, that fact probably furnishes as strong a presumptionin favor of the correctness of their opinion, as can ordinarily beobtained in favor of a judgment, by any measures of a practicalcharacter for the administration of justice. Still, there isnothing in Magna Carta that compels the execution of even asecond judgment of a jury. The only injunction of Magna Carta upon the government, as to what it shall do, on this point, is that itshall "do justice and right," without sale, denial, or delay. Butthis leaves the government all power of determining what isjustice and right, except that it shall not consider anything asjustice and right so far as to carry it into execution againstthe goods, rights, or person of a party unless it be somethingwhich a jury have sanctioned.

If the government had no alternative but to execute all judgmentsof a jury indiscriminately, the power of juries wouldunquestionably be dangerous; for there is no doubt that they maysometimes give hasty and erroneous judgments. But when it isconsidered that their judgments can be reviewed, and new trialsgranted, this danger is, for all practical purposes, obviated.

If it be said that juries may successively give erroneousjudgments, and that new trials cannot be granted indefinitely, theanswer is, that so far as Magna Carta is concerned, there isnothing to prevent the granting of new trials indefinitely, if thejudgments of juries are contrary to "justice and right." So thatMagna Carta does not require any judgment whatever to beexecuted so far as to take a party's goods, rights, or person, thereon unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument, suppose theexistence of a practical, if not legal, necessity, for executingsome judgment or other, in cases where juries persist indisagreeing with the courts. In such cases, the principle of MagnaCarta unquestionably is, that the uniform judgments ofsuccessivejuries shall prevail over the opinion of the court. And the reason of this principle is obvious, viz., that it is the will of thecountry, and not the will of the court, or the government, thatmust determine what laws shall be established and enforced; thatthe concurrent judgments of successive juries, given in oppositionto all the reasoning which judges and lawyers can offer to thecontrary, must necessarily be presumed to be a truer exposition ofthe will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control ofthe court, in matters of law, they may disagree amongthemselves,and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occurbut rarely; because, although one jury may disagree, a successionof juries are not likely to disagree that is, on matters ofnatural law, or abstract justice. [2] If such a thing shouldoccur, it would almost certainly be owing to the attempt of thecourt to mislead them. It is hardly possible that any other causeshould be adequate to produce such an effect; because justicecomes very near to being a self-evident principle. The mindperceives it almost intuitively. If, in addition to this, thecourt be uniformly on the side of justice, it is not a reasonablesupposition that a succession of juries should disagree about it.If, therefore, a succession of juries do disagree on the law ofany case, the presumption is, not that justice fails of beingdone, but that injustice is prevented that injustice, whichwould be done, if the opinion of the court were suffered tocontrol the jury.

For the sake of the argument, however, it may be admitted to bepossible that justice should sometimes fail of being done throughthe disagreements of jurors, notwithstanding all the light whichjudges and lawyers can throw upon the question in issue. If it beasked what provision the trial by jury makes for such cases, theanswer is, it makes none; and justice must fail of being done,from the want of its being made sufficiently intelligible.

Under the trial by jury, justice can never be done that is, by ajudgment that shall take a party's goods, rights, or person until that justice can be made intelligible or perceptible to theminds of all the jurors; or, at least, until it obtain thevoluntary assent of all an assent, which ought not to be givenuntil the justice itself shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof ofproperty; or, in other words, every man is presumed to be therightful proprietor of whatever he has in his possession.